Excerpt:trustee and cestui que trust - limitation--will--void gift--residue--gift of interest--share of rents and profits--corpus of estate. - field, j.1. the position of the parties in this case will appear from the genealogical tree to be found at page 4 of the paper-book. hurro mohun ghose, the testator, died in aghran 1270, that is, november 1863. he left a will executed on the 4th assar 1268 (17th june 1861). as to the factum of this will there is no dispute before us, and the present case is concerned solely with the construction to be put upon the paragraphs of this instrument. hurro mohun had two sons, shyam chand and nobin chand, and three daughters, named troilukhya moni, gobind moni, and nistarini,2. of the two sons, shyam chand died in 1257 (1850), during his father's lifetime, and left three sons,--viz., aubinash chunder, gopal chunder, and atul chunder, all three of whom are mentioned and provided for in the will......

Judgment:

Field, J.

1. The position of the parties in this case will appear from the genealogical tree to be found at page 4 of the paper-book. Hurro Mohun Ghose, the testator, died in Aghran 1270, that is, November 1863. He left a will executed on the 4th Assar 1268 (17th June 1861). As to the factum of this will there is no dispute before us, and the present case is concerned solely with the construction to be put upon the paragraphs of this instrument. Hurro Mohun had two sons, Shyam Chand and Nobin Chand, and three daughters, named Troilukhya Moni, Gobind Moni, and Nistarini,

2. Of the two sons, Shyam Chand died in 1257 (1850), during his father's lifetime, and left three sons,--viz., Aubinash Chunder, Gopal Chunder, and Atul Chunder, all three of whom are mentioned and provided for in the will. Aubinash Chunder died in 1271 (1864), about a year after his grandfather, and the plaintiff in the present case, Hemangini, is his only daughter and heiress. Nobin Chand survived his father Hurro Mohun, and is defendant No. 1 in the present case. Troilukhya Moni and Gobind Mom, defendants Nos. 4 and 5, were widows, residing in their father's house. Nistarini, the third daughter, died in 1269 (1862), before her father's death, but after the execution of the will; and left two sons, Roy Lall and Amrito Lall, who are defendants Nos. 2 and 3. The remaining defendants, Nos. 6 and 7, are the other two grandsons of Hurro Mohun, or sons of Shyam Chand,--namely, Gopal Chunder and Atul Chunder.

3. The will is to be found at page 13 and following pages of the paper-book. After the usual recital that the testator is old, suffering from disease, and likely to die, the will contains the following passage: 'My youngest son and heir Nobin Chand Ghose, and Aubinash Chunder, Gopal Chunder, and Atul Chunder Ghose, three sons of my late eldest son Shyam Chand Ghose, or their heirs, shall not be competent to act contrary to the provisions of this will.' Then we have a recital of the property belonging to the testator; and after this recital, in the first paragraph, the will provides as follows: My self-acquired first Abad, Mouza Muddunpore, Parganna Medanmulla, now fetches an annual profit of Rs. 2,000, after paying the rent due to its zamindar. Out of which, after paying Rs. 500 for the salaries of the karpurdazes and the expenses of erecting dams, there remains a balance of Rs. 1,500 (one thousand and five hundred rupees), which--that is, the said Muddunpore Abad,--I do set apart for the better performance of my usual turn of service of the deity Gobind Ji for four months, for the feeding of mendicants and travellers, for the celebration of the annual festivals of Durgutshab and Dole Jatra, for the repair of the road in front of the house and the outer apartment of the house, together with the dalan, for the celebration of the daily and occasional rites and ceremonies, and for the distribution of alms and other virtuous acts. My heirs shall have no right to the same. Besides the above property, the second Abad, Mouza Hadul, Mouza Sonegohalia, and Mouza Malunga, etc., Parganna Medanmulla, acquired by me, as well as my ancestral and self-acquired kheraj and lakheraj lands, fetch an annual profit of Rs. 3,150 exclusive of the zamindar's rent. I allot all those properties for the maintenance of my family. None of my heirs shall be entitled at any time to get any partition of the said properties effected, nor shall he be competent to transfer the same by sale or gift, or pledge the same in security for any person. If any one of them does the same at any time, the same shall be null and void. Out of the said amount of Rs. 3,150, I do sanction Rs. 500 a year for the construction of the embankments on my second Abad, Mouza Hadul, etc., for the payment of the salaries of gomasta, paik, bildar, and other agents, and for the repair, &c.; of the cutcheri-house. The balance, Rs. 2,650, will be apportioned among the members of my family by way of annual allowance in the amounts specified below,--that is, the three brothers Aubinash Chunder, Gopal Chunder, and Atul Chunder Ghose, sons of my deceased elder son Shyam Chand Ghose, shall get an allowance of Rs. 366-10-13-1-1 each; total Rs. 1,100 a year; and my younger son, Nobin Chand Ghose, shall get a yearly allowance of Rs. 1,100. My younger daughter, Srimoti Nistarini Dasi, and her sons, Roy Lall and Amrito Lall, born of her, and any other son who may hereafter be born of her, shall all of them get a yearly allowance of Rs. 300. On the demise of any of the legatees, his or her heirs shall get the said allowance as sanctioned by me. In case of any of them becoming a childless widow, she shall get the said allowance, no matter whether she lives under the roof of my family dwelling-house or at any holy place. But if she turns to be an unchaste woman and lives elsewhere, she shall get no allowance; her allowance shall be stopped and forfeited to my estate, and then whoever shall prove under the Hindu law to be her heir, shall get the allowance fixed on her. If my youngest daughter, Srimoti Nistarini Dasi, and her sons, Roy Lall Bose and another born of her, do not live in the family dwelling-house or in this village, they shall forfeit the allowance fixed on them; if any one of them so live, he shall get the said allowance. If Nistarini Dasi is removed elsewhere by her husband, she shall, get the said allowance for life. If none of her sons live in my family dwelling-house or in this village, then the allowance due to them shall be stopped and will be equally shared by my heirs. The legatees or their heirs shall not be competent to make any other claim (than the allowance sanctioned by me). If in any year the amount of money cannot, owing to any pestilence breaking out, be realized in full, then the allowance shall be paid in proportion to the amount of money realized, and the allowance shall be duly paid off as soon as the arrears shall have been realized from the tenants.'

4. Paragraph 2 then provides for the management of the property of the testator, and it is here directed that, upon the testator's decease, his youngest son, Nobin Chand Ghose, shall be manager for the term of his life; that he is to be remunerated by an annual stipend of Rs. 300, one moiety of this stipend to be payable out of the rents and profits of Muddunpore, and the other moiety to be similarly payable out of the rents and profits of Hadul. Then follows a provision for the appointment of a manager upon the death of Nobin Chand Ghose, and for the appointment of successive managers for all future times. To these provisions it is unnecessary to refer further at large. We then come to paragraph 3, which disposes of Government paper of the value of Rs. 12,900. Of this the following disposition is made: Rupees 3,000 is to be invested and kept as a reserve fund for the purposes of paying Government revenue in seasons of dearth or scarcity when the rents are not collected from tenants. It is directed that this amount of Government paper shall never be divided between the testator's heirs. A further sum of Rs. 3,000 is given to Nobin Chand Ghose. Then in respect of Rs. 4,900, there is a direction that this amount be invested as part of the estate and held in trust by the manager, one moiety of the interest thereon to be paid to Aubinash Chunder Ghose and his two brothers, and the other moiety to Nobin Chand Ghose. Of the remaining Rs. 2,000, Rs. 500 is given to the testator's grandson, Gopal Chunder Ghose, for his marriage expenses; and Rs. 1,500 are allotted for the excavation of the bed of the Ganges and the Nundun Tank.

5. Then paragraph 4 contains directions as to the manner in which the family dwelling-house is to be occupied. Certain rooms are allotted for the separate occupation of different members of the family, and other portions of the house are directed to remain common for the use of all the members of the family. There are further directions contained in the will, but for the purposes of the present suit it is not necessary to refer to them specifically.

6. Now it will be borne in mind that Aubinash, the plaintiff's father, survived the testator for about one year, and there is no doubt that he acquiesced in the provisions of the will and in what was done by Nobin Chand as manager appointed under the provisions already referred to. The plaintiff brings the present suit more than twelve years after the death of the testator, and more than twelve years after her own father's death, and in her plaint she avers, first, that Muddunpore has not been bona fide and properly dedicated as a debuttur property, and that, since the death of the testator, all the profits of this estate have been considerably increased; while no provision is made in the will disposing of such increase; secondly, that the provisions of the will as to the second estate, Hadul, are opposed to law, and are therefore invalid; thirdly, that Nobin Chand, the manager, has not paid the allowances directed by the will, and that he is using the profits of the estate and the cash in hand wrongly and fraudulently, and that he has otherwise conducted himself in a manner opposed to the express directions of the will; fourthly, that he has not complied with the directions of the will as to the Government paper; fifthly, that the will is invalid and cannot be supported,; and that the plaintiff is entitled to a one-sixth share of the whole property left by her father.

7. The plaintiff, therefore, asks, first, that the Court will construe the will according to the true intent thereof--that so far as the will or any portion thereof is found to be valid, will determine the respective rights of the plaintiff and the defendants to the testator's estate in accordance therewith; secondly, that if the whole will or any portion of it be held to be invalid, the Court will determine and declare the extent of the plaintiff's right in the property so left undisposed of by Hurro Mohun; thirdly, that the Court will determine what properties, moveable and immoveable, existed at the time of the death of Hurro Mohun, and also what properties have been subsequently acquired and added to the corpus, and in order to do this, will compel defendant No. 1 to render an account; fourthly, that the Court after determining these matters, will direct a partition of the whole estate, moveable and immoveable; fifthly, that Nobin Chand may be directed to submit an account of all the expenses incurred for the purposes connected with the Muddunpore property; sixthly, that, in order to prevent further waste, Nobin Chand Ghose may be removed from the management of the estate, and the Court may be pleased to appoint a receiver in his place; and seventhly, there is a prayer for general relief.

8. The Subordinate Judge of the 24-Parganas, who tried the case, decided--first, that Muddunpore was not bona fide dedicated to religious purposes; that it must be held to be secular property subject to the religious and charitable trusts mentioned in the first paragraph of the will; and he was, therefore, of opinion, that if the plaintiff can be held entitled to succeed to the Muddunpore estate, she must take it subject to the several charitable and religious bequests of the testator; secondly, he decided that the directions of the will in respect of the Hadul estate, prohibiting alienation and partition, are invalid; but he was of opinion that the annuities given by the testator (i) to his son, (ii) to his three grandsons, and (iii) to his daughter Nistarini, and her sons, may be enjoyed by them during their lives, but cannot descend to their heirs who are not born during the lifetime of the testator. He, therefore, held, that the plaintiff, who was born in Magh 1271 (January 1865), that is, after the death of the testator, is not entitled to the annuity enjoyed by her father, but as the defendants did not object to pay her this annuity, she might be held entitled thereto according to the defendants' admission, and not by virtue of any right. In respect of the profits of the Hadul estate in excess of the annual amount stated in the will, the Subordinate Judge was of opinion, that this surplus must go among the heirs-at-law. In respect of the three thousand rupees Company's paper, which was directed to be formed into a reserve fund, the Subordinate Judge was of opinion, that the prohibition against partition could not stand good in law. As to Rs. 4,900, the Subordinate Judge held, that inasmuch as the will disposed of the interest only, and contained no disposition of the corpus, this corpus must go to the heirs-at-law. Then as to the family dwelling, the Subordinate Judge was of opinion, that such portions as were not allotted to separate occupation according to the provisions of the will are liable to partition.

9. Having thus dealt with the questions raised in the plaint, the Subordinate Judge proceeded to consider the further and important question of limitation, and he decided upon the authority of the cases of Kherodemoney Dossee v. Doorgamoney Dossee 2 C.L.R. 112: S.C. on appeal I.L.R. 4 Cal. 455 and Greender Chunder Ghose v. Mackintosh I.L.R. 4 Cal. 897 that Section 10 of the Limitation Act, XV of 1877, does not apply to this case, inasmuch as the plaintiff is seeking by her plaint not to enforce the specific trusts created by the will, but really to defeat those trusts. Then, assuming Article 127 of the second schedule of the Limitation Act, XV of 1877 to be applicable, the Subordinate Judge was of opinion, that time began to run from the testator's death, and that, inasmuch as the plaintiff's father, Aubinash, was at the time of the testator's death a major, and entitled to sue if he wished to dispute the will, the plaintiff, who was a minor at the time of her father's death, cannot have any benefit from such minority in the calculation of the time under Article 127. He was, therefore, of opinion, that the plaintiff's claim is barred by limitation in respect of Muddunpore. As to the three thousand rupees Company's paper directed to constitute the reserve fund, and the four thousand nine hundred rupees, the interest of which was disposed of, but in respect of the corpus of which the will contained no disposition, he held, that Article 127 of the second schedule of the Limitation Act is applicable and bars plaintiff's suit. Then further, in respect of this sum of Rs. 7,900 Company's paper--that is, the two items of Rs. 3,000 and Rs. 4,900 just referred to, in respect of the profits of Muddunpore exceeding the annual sum of Rs. 2,000 disposed of by the will, and in respect of all the moveables, he held that the plaintiff's claim is barred by Article 123. As to the Hadul estate he says, after referring to Article 123 of the present Limitation Act, XV of 1877: 'The corresponding Article 1221 of Act IX of 1871 has been enlarged in its scope in Article 1232 of Act XV of 1877, by omitting the word 'moveable' of Article 122, and by the additional provision 'or for a distributive share of the property of an intestate;' so the substituted Article 123 includes both moveable and immoveable property, and the period of limitation prescribed is twelve years, to be computed 'when the legacy or share becomes payable or deliverable.' Ordinarily they become payable or deliverable from the testator's death, unless the testator wishes expressly that the payment of the legacy shall be postponed to some future period after his death, as in the case of Tagore v. Tagore 9 B.L.R. 377. But in suits for a distributive share of the property of an intestate, the share becomes deliverable immediately on the testator's death, as held by Mr. Justice Markby both in cases where he has actually left some property undisposed of by the will, and where he has made an illegal disposition of property which must go to the heir-at-law. 'That being the case, the Hurro estate being illegally disposed of by the will, it immediately vested in the heirs-at-law--i.e., the plaintiff's father--on the testator's death; and as the invalidity of the will must be first declared before relief can be granted, a suit to set aside a will, on the ground of illegality, to declare that the testator died intestate, whereby the heirs-at-law became entitled to his property so illegally disposed of, and to seek consequential relief by decreeing possession, must be brought within twelve years from the death of the testator under Article 123, as the property became deliverable on the testator's death.' The Subordinate Judge was further of opinion, that Nobin Chand cannot be regarded as the kurta or manager of a Hindu family; and he, therefore, considered, that the possession of Nobin cannot be regarded as possession on behalf of all the members by the manager of a joint Hindu family. The legacies of Rs. 5,000 Company's paper to persons designated by the will, he held to be good, and the result of his decision upon the points raised before him is thus summed up: For reasons stated above, with the exception of the claim of the rooms enjoyed by the plaintiff's father and mother in succession, as well as the moveable property held by them, of the ornaments belonging to the plaintiff's mother and the annuity enjoyed by the plaintiff, the remaining portion of the plaintiff's claim is barred by limitation. The latter refers both to the Muddunpore and Hurro estates, to the corpus of Company's papers for Rs. 7,900 not disposed of by the will, as well as to all the accounts claimed by the plaintiff.'

10. From this decree an appeal has been preferred by the plaintiff, and a cross-appeal by the defendants. On the appeal it has been contended, that limitation has no application to this suit; that if Articles 123 and 1273 of the second schedule of the present Limitation Act can be held to be applicable, still Section 1014 of the same Act applies, so as to save the plaintiff's claim from the operation of limitation. As to Section 10 Mr. Branson contended, that there is a general trust to manage. He relies upon the following provisions of the will: 'I allot all those properties for the maintenance of my family. None of my heirs shall be entitled at any time to get any partition of the said properties effected, nor shall be competent to transfer the same by sale or gift, or pledge the same in security for any person;' and he argues that this general trust is in its substance sufficiently specific to bring it within the provisions of Section 10. We are not able to concur in this argument. The plaintiff is not seeking to enforce this general trust in accordance with, and in pursuance of, the directions contained in the will. If there is any express trust, it is to pay to the plaintiff, as heir of her father, an annual allowance of Rs. 366, and the plaintiff is not asking to have this direction specifically enforced. On the contrary, her contention is, that this disposition fails, inasmuch as it is not a valid disposition according to law. The case is then not the case of a valid disposition creating a specific trust, and a suit by a person beneficially interested to enforce such specific trust. It has been held that the section is not applicable to an implied or resulting trust; and, under these circumstances, we are of opinion that Section 10 is not applicable to the plaintiff's claim as put forward by her in her plaint. This decision is in accordance with the cases of Kherodemonoy Dossee v. Doorgamoney Dossee 2 C.L.R. 112; S.C. on appeal I.L.R. 4 Cal. 455; Greender Chunder Ghose v. Mackintosh I.L.R. 4 Cal. 897 and Anund Moye Deby v. Grish Chunder Myti I.L.R. 7 Cal. 772. But then the question arises, is the plaintiff's suit barred by any other provisions of the law of limitation? and this question it will be convenient to consider (i) in respect of the Hadul estate, and (ii) in respect of the Muddunpore estate.

11. First then as to the Hadul estate. If the plaintiff's claim is barred, it must be barred by one of the following articles, viz., 123, 127, and 1445 of the second schedule of the Limitation Act. Now, the view which we take of the case is this: We think that the general intention of the testator to be gathered from the will was to leave his property to the persons who would have been entitled as heirs under the Hindu law, and also to create an additional heir in the person of his daughter Nistarini and her sons. In carrying out this intention, he has, no doubt, inserted in the will certain provisions which must be rejected as invalid--the provisions, viz., against alienation and partition: but we think that what he has substantially done is this: Having created an additional heir, he has divided the Hadul estate between this heir and the persons who would have been heirs under the Hindu law. We think that, in giving to these heirs a specific share of the rents and profits, he must be held, according to the principle laid down in Mannox v. Greener L.R. 14 Eq. 456 see also Illustration (c) to Section 1596 of the Indian Succession Act to have given to each of these persons a share in this estate corresponding with the share of the profits which is specifically inserted in the second paragraph of the will. The case of Sookmoy Chunder Dass v. Monohari Dossee I.L.R. 7 Cal. 269 which was decided by this Bench, has been referred to in the course of the argument; but it appears to us that that case is distinguishable from the present one. In that case, the prohibition against alienation was stronger than the prohibition in the will now before us. There was an express direction that the estate should remain intact, and the testator there further attempted to create an estate-in-tail-male--that is, an estate not known to Hindu law. We there held, that it was impossible to say that an intention, by giving the rents and profits of the property, to give thereby the corpus itself was in conformity with the general intention to be gathered from the whole of the will taken together. In the case now before us it appears to us, that the intention to give the corpus by giving a share of the rents and profits is not in conflict with the general intention to be gathered from the whole will. It is true that there is a restraint on alienation and partition; but it appears to us that this direction can be set aside without destroying the essential disposition contained in the will. There being then, by a gift of a specific share of the rents and profits, a good gift of a share in the Hadul property, is it possible to say that the plaintiff's claim in respect of this share is barred by limitation? We think that it is not. Admittedly, Nobin Chand, the manager, has been paying the annual allowance given to Aubinash and his children by the will within twelve years before the institution of this suit, and it is, therefore, not possible to say with reference to Article 127, that, in respect of this share, there has been any exclusion of the plaintiff. Similarly, we think it cannot be said with reference to Article 144, that, in respect of this share, the possession of Nobin has been adverse to the plaintiff. Then with reference to Article 123, if the annual allowance made to Aubinash and his children be regarded as a legacy, there is no denial that the plaintiff has been admitted to the enjoyment of this legacy; and the object of the present suit is not to recover the legacy, but to have it defined what that legacy really is. We are, therefore, of opinion that, in respect of the share of the Hadul property, the plaintiff's claim is not barred by limitation.

12. Then, applying the same principle of construction to the share given to Nistarini and her children (for in respect of the shares given to the other persons mentioned in the will there is no dispute), it appears to us, that the possession of Nobin Chand Ghose as trustee for Nistarini's children must be held to have been adverse to the plaintiff from the date of the death of the testator; and we think, therefore, that, in so far as the plaintiff seeks to enforce a claim to the share given to Nistarini's children, the present suit is barred. This is in accordance with the decision in Kherodemoney's case 2 C.L.R., 112: S.C. on appeal, I.L.R., 4 Cal., 455 see also the observations of the Privy Council in the case of Pirthee Singh v. Raj Kooer 12 B.L.R. 238; S. c 20 W R. 25. We may observe that it has not been very strongly pressed upon us, that Nistarini's children ought not to have their annual allowance for the period of their lifetime, and all that we were asked to say was, that, upon their death, the share given to them would be divisible as part of the general estate of Hurro Mohun. We think, however, that this share has been given absolutely; and that, in respect thereof, the plaintiff is barred by limitation for the reasons already stated. Then, in connection with the Hadul property, there remains another question to be dealt with, and that is the question concerned with the increase in the annual profits over and above the sum of Rs. 3,150 set down in the second paragraph of the will. Now, the will does contain a specific provision that if the rents and profits of the estate shall in any year fall below the amount so set down, the persons entitled to shares in these profits under the will shall be subjected to a ratable and proportionate deduction; but there is no corresponding provision in respect of a possible increase. It appears to us, however, that the reasonable construction to put upon the will, all its provisions being taken together, is, that the increase ought to be dealt with in the same manner as the decrease; in other words, that any surplus profits above the sum of Rs. 3,150 specifically mentioned in the will must be divided between the legatees in the proportion of their shares.

13. We shall next deal with the sums of Rs. 500 allotted for the construction of embankments, the payments of salaries of gomastas, etc., and the sum of Rs. 150, which is a moiety of the remuneration directed to be paid to the manager for the time being. Now, if these were bequests for specific purposes in which the plaintiff has no beneficial interest, we think that the possession of Nobin Chand would have been adverse to the plaintiff; and if these sums were disposed of for a purpose that had failed, we think that they must have fallen into the residue, and as the will contains no valid residuary bequest, the plaintiff would have been barred under the provisions of Article 123. But we think that it is impossible to say that the bequest of these two shares of the profits can be considered apart from the bequest of the remaining portions of the profits of the Hadul estate. The purposes for which the sum of Rs. 500 was bequeathed are construction of embankments, payment of salaries of gomastas, paiks, bildar, and other agents and repairs of the cutcheri. These are purposes essentially connected with the estate itself and its management, and the same observation is applicable to the sum of Rs. 150, which is a moiety of the manager's remuneration. The plaintiff asks for a partition, and upon that partition she will, of course, have to bear all expenses such as those which have been just specified in respect of her own share. We think, therefore, that these two sums of Rs. 500 and Rs. 150 must be regarded as an integral portion of the Hadul property. The result will be that the share of that property to which the plaintiff will be entitled will be ascertained in the following manner: As Rs. 2,650 is to Rs. 366-10-13-1-1, so is the whole property to the plaintiff's share.

14. We have next to consider the question of limitation in connection with the Muddunpore estate. Now, the will directs that the profits of this estate, which are set down as Rs. 2,000 annually, shall be disposed of in the following manner,--viz., Rs. 500 for karpurdazes and expenses of erecting dams, and the remaining Rs. 1,500 for the following seven purposes:

(1) Turn of service of the idol Gobind Ji.

(2) Feeding of mendicants and travellers.

(3) Durgutshab and Dole Jatra.

(4) Repair of the road in front of the house.

(5) Repair of the outer house, dalan, &c.;

(6) Daily and occasional rites and ceremonies.

(7) Alms and other necessary acts.

15. Now we think there can be no doubt that the plaintiff has a certain interest in Nos. 3, 4, 5, and 6 of the above objects; and in respect of these objects we think it may be held, that the property has been vested in Nobin in trust for specific purposes within the meaning of Section 10 of the Limitation Act already referred to; but we are of opinion that the plaintiff's interest in these purposes, although it may entitle her to compel the trustee for the time being to perform the Dole Jatra, to repair the road in front of the house, to repair the outer house, dalan, etc., and to perform the daily and occasional rites and ceremonies, is not such an interest as will entitle her to say, that she is not barred by the law of limitation from asserting her right to a share in the Muddunpore estate as one of the heirs of Hurro Mohun? In respect of this estate, the possession of Nobin is adverse to the plaintiff in so far as concerns the object of the present suit, although Section 10 would save from the operation of the law of limitation a suit having for its direct object the effectuation of the purposes to which the profits of the Muddunpore estate have been directed by the will to be appropriated, Then if any of these purposes fails, the estate, so far as concerns the purposes which fail, becomes part of the residue not disposed of by the will; and in respect of this residue, Hurro Mohun died intestate. In this view, the plaintiff's claim to a share in the Muddunpore estate is barred by Article 123. We also think that the plaintiff (and before her, her father) has been excluded within the meaning of Article 127 since Hurro Mohun's death; and further, that since the same event, the possession of Nobin has been adverse within the meaning of Article 144. We think, however, that although the plaintiff is barred from asserting a title to a share in the Muddunpore estate, she has a right to ask that purposes 3, 4, 5, and 6, already referred to, be effectually performed out of the annual sum of Rs. 1,500 set apart by the will for these and the other purposes already mentioned; and we direct that a declaration to this effect be inserted in the decree.

16. We now come to the disposition of the Company's paper, Rs. 12,900: First, as to the sum of Rs. 3,000 set apart as a reserve fund, the prohibition against alienation is, of course, invalid; and, in consequence, this sum of Rs. 3,000 fails to be disposed of as on an intestacy, and the plaintiff's claim in respect of any part of this sum is barred by the provisions of Article 123. Then, secondly, as to the bequest of Rs. 3,000 to Nobin Chand; this is a good bequest and cannot be interfered with. Thirdly, as to Rs. 4,900, there is no specific bequest of the corpus; but we think that the bequest of the interest must be taken to carry with it the right to the corpus, and in this view the plaintiff will be entitled to a life-interest in one-third of Rs. 2,450. Fourthly, the bequest of Rs. 500 to Gopal Chunder Ghose is a good bequest, and cannot be interfered with. Fifthly, as to Rs. 500 set aside for the excavation of the bed of the Ganges and the Nundun Tank, it is admitted that the testator, who lived for some time after the execution of the will, spent this money for the purposes just mentioned; and there is no question concerned with this money with which we have now to deal. Sixthly, the claim to a share in the moveable property other than that above specifically mentioned is barred by Article 123. Then, lastly, we are informed that there is no desire on the part of appellant to interfere with the separate occupation of the family dwelling-house, in so far as that occupation has been directed and regulated by the provisions of the will. But the decree of the Subordinate Judge, in so far as it declares the undivided portion of the family dwelling liable to partition cannot be interfered with.

17. The result then will be, that, as to the Muddunpore property, there will be a declaration that the plaintiff is entitled to have the Durgutshab, repairs of the road in front of the house, the repairs of the outer house, dalan, etc., as specified in paragraph 4 of the will, and the daily and occasional rites and ceremonies properly performed out of the annual sum of Rs. 1,500 set apart for these and other purposes in the will. Next, as to the Hadul property, the plaintiff will be entitled to a share bearing to the whole property the same proportion that Rs. 366-10-13-1-1 bears to Rs. 2,650. It will be understood that in this share the appellant is only entitled to the estate of a Hindu daughter. Then, as to the account asked in respect of the Hadul property, we think that the plaintiff is entitled to such account for six years only preceding the institution of the present suit, upon the authority of the case of Baroda Pershad Chattopadhya v. Brojo Nath Bhuttacharjee I.L.R. 5 Cal. 910. Upon taking that account, the manager, Nobin Chand, will be entitled to credit for all sums paid to the appellant in respect of the annual allowance of these six years; and she will be entitled to whatever balance of the profits of her share will remain after giving credit for these sums. The plaintiff will be further entitled to a life interest in one-third of Rs. 2,450 Government paper; and the plaintiff will further be entitled, if she insists upon it, to a partition of the undivided portions of the family dwelling-house. Having regard to the difficult questions which have arisen upon the construction of this will, we think that the whole of the costs of these proceedings should be paid out of the estate.

1[Art. 122:

Description of suit. Period of Time when period begins to run.

Limitation

For a legacy or for a distributive When the legacy or share becomes

share of the movable property of a Twelve years... payable or deliverable.]

testator or intestate.

2 [Art. 123:

For a legacy or for a share of a

residue bequeathed by a testator, or Twelve years. When the legacy or share becomes

for a distributive share of the property payable or deliverable.]

of an intestate.

3 [Art.127:

Description of suit. Period of Time from which period

limitation begins to run.

By a person excluded from joint-

family property to enforce a right to Twelve years... When the exclusion becomes known

share therein. to the plaintiff.]

4 [Section 10: Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific

Suits against express trustees and their representatives.

5[Art. 144:

Period of Time from which period begins

Description of suit. limitation. to run.

For possession of immoveable property

or any interest therein not When the possession of the defen-

here by otherwise specially provided Twelve years dant becomes adverse to the

for. plaintiff.]

6[Section 159: Where the interest or produce of a fund is bequeathed to any person, and the will affords no indication of an intention that the enjoyment of the bequest should be of limited duration, the principal as well as the interest shall belong to the legatee.

Bequest of the interest or produce of a fund.

(c) A bequeathes to B the rents of his lands at X. B is entitled to the lands.]